Supreme Court Takes Review of Arizona’s SB 1070 (But Why?)

I don’t know why the Court took the case. It could easily have ducked. There are other cases working their way through the pipeline from copycat states (Georgia, Alabama, South Carolina). The Court could have waited for further “percolation” of the issue in the lower courts and the prospect of a circuit split. It already has one political hot-button issue on its plate; why load up with another? No faction on the Court appears to have an immigration-related agenda (though obviously the right side has a federalism-related one).

On the other hand, the Court probably felt warmed up on the issue after the Whiting decision last term, in which it upheld a narrower AZ law relating to e-Verify and employer sanctions. The Court would probably have had to get to this at some point, so why not establish some certainty now. And a majority is probably not on board with the Ninth Circuit’s decision here, which enjoined all key parts of the law.

This will be a big decision at the intersection of immigration and federalism, probably the biggest since its 1942 decision in Hines v. Davidowitz. It could also have important implications for foreign relations federalism. My guess is that the Court is going to split the difference here. I think it’ll uphold a key provision requiring law enforcement to undertake immigration status determinations, but it will nullify another which in effect makes undocumented status a crime under state law (it isn’t under federal). But it will raise the overall bar for preemption, moving away from Hines’ hair-trigger standard, even in such sensitive areas as immigration an foreign affairs.

Meanwhile, this will probably short-circuit political efforts on the ground to scale the law back, at least pending a decision. That’s too bad. These laws might have gone away on their own. For the moment, the Court’s intervention will make that less likely.

One Response

IMO, the biggest issue at stake here, is the question of which the supremacy clause makes supreme: Federal law, or federal policy. Because that’s the elephant in the room: When it comes to immigration, the two are diametrically opposed, and the state laws in question don’t actually conflict with federal *law*. Only the policy…
If the feds were really concerned about federal immigration *law* being flouted, they’d be suing ‘sanctuary’ cities, not Arizona.

12.14.2011
at 8:43 am EST Brett Bellmore

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